Amicus Curiae Brief — Red Lion Broadcasting Co. v. Federal Communications Commission

hg _ Page

_ INTEREST OF THE AFL-CIO PRE ae 2

ARGUMENT | svssecccccssssecessscsseee i i 4

The Public Has A Constitutionally Protected Right es

Of Access To The Airwaves To Present Variegated

_ Miews On Issues Of Public —

CONCLUSION <i ctnyofchtiti esate dado edaeay en ae

CasEs:

Abbott ‘biaaiaaae’: Gardner, 387 U.S. 136 (1967) 22

Amalgamated Food Employees v. Logan Valley ©

Plaza, 391 U.S. 308 (1968) 2, 9, 12, 14

Associated Press v. National Labor Relations Board,

° 301 U.S. 103 CAME sccnctinnnnsnnntiobnunmcsbnaneiimaimebians 19

Associated Press v. United States, 326 U.S. 1 (1945) 8, 19

Cameron v. Johnson, 390 U.S. 611 (1968) -ssccctiwcuee “12

Communist Party v. Subverswe Activities .Control

Board, 367 U.S. 1 (1961) ......sccscseeseeses sili ae

Cox v. New Hampshire, 312 U.S. 569. (1941) , senses 10,19 -

Davis v. Massachusetts, 167 U.S. 43 (1897) ....... waive 7-8 |

Federal, Communications. Commission v, Pottsville

Broadcasting Co., 309 U.S. 134 (1940) . ~ at

Hague v. CIO, 307 U.S. 496 (1939) cescsscsocse vain 2, 8-9, 11

Hamnegan v. Esquire, 327 U.S. 116 (1958) ....sisesscsssees 15

Jamison v. Texas, 318 U.S. 412 (1948): ......cecssssseeseers 9

' Lamont v. Postmaster Generat, 381 U. S. 301. (1965)

| -8, 15, 16

Lea's v. Griffin, 303 U.S. 444 (1938) ......... etd 1. 8, 9-10 ©

Marsh v. Alabama, 326 U.S. 501 RDG) Saveececorensnsonnsciins 14°

Martin v. Struthers, 319 U.S. 141 (1943) ........... Scie 8

_ Murdock v. Pennsylvania, 319 U.S. 105 (1948) ............ 18 |

‘NAACP v. Button, 371 U.S. 415 (1963) «.......... anova 19

National Broadcasting Co. v. United States, 319 US.

190 (1948) nididiauaiduaedaaciiaiaae palinls 4-5, 6

‘

i

>?

ore

: National Labor Relations Board v. Babcock & Wil- —

. €0G Cd,; 351 U.S. 105 (1956) ....ccseccccecesesoscvessopesoeresieiens 2

National Laker Relations Board v. Stowe Spinning os

ah I Te I CD isisaciaiccccttcbinsesstnserstitcisninceber 2

New’ York Times v. Sullivan, 376 U.S. 254 (1964) cn

: 2-3, 11, 16, 20

Wiesel vaMaryland, 340 U.S. 268 (1951) .......:... 18, 18

Office of Communications v. Federal Communica- :

tions Commission, 359 F.2d 694 (1967) ....:..0cses-.ise- 14

’° Screws v. United States, 325 U.S. 91 (1945) cstv 21

Schneider v. State (Town of I rvington), 308 U. S. 147

RRA ibe stchasitniehiibihdiealoeissemibiaiia 2, 9, 10, 11, 12, 17

_ Shelton v. Tucker, 364.U.S. 479 (1960) ...... sovsnsinnnessosces 21

Smith y. California, 361.U.S. 147 (1959) occ 16 -

~~ Bpeiser v. Randall, 357 U.S. 513 (| re

’ ‘Staub v. Baaley, 355 U.S. 313 (1958) ............ OS re cs

Thomas v. Collins, 323 U.S. 516 (1945) ....sssccissesecepenee 2

United States v. Assouates Press, 52 F.Supp., 362

ee cased scat 8, 11, 15

Srarutss : es . i

Communications Act of 1994 2 as adenine’, 47 US. C.:

‘Section LBS srecrscesessnecesiconsonrorensonsesavenscnconcassssaenseesosecseoee 5

; p30! : eine eS ainatiineti sui a obi iaieaartasite 5, 6,14 -

i ccccsssaians 6,16

asc etc asses ceectariee Asccinicien a

MISCELLANEOUS: ) af |

Kalven, Broadcasting and the First poe am 10

Journal of. Law & Economics, 15 (1967) ........... . 15, 21

Kalven, Cox v. Louisiana: The Concept of the Public

Forum, 1965 Supreme Court Review 1 .............. 9, 10-11

Public Notice of J uly 1, 1964, Applicability of the

Fairness Doctrine im the.Handling of Controver- _

_sial Issues of Public Importance (Fairness

Primer), 29 Fed. Reg. 10415 (1964) .......:..s:s:ssssssee B.

Report of Editorializing by Broadcast Licenses, 13

FE Ip ciuiyhicacpectcnssincasnicnceseevnnions 2, 6, 14, 18

Por

La

, ea IN THE

upreme Court of the Siiten States

3 - Ocrosmn Term 1968

wae m7 if

. i , (at ree eres

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a | UNITED STATES OF OF AMERICA AND FEDERAL

a inert waerist in COMMISSION, saageenan ia

4 ; , v. ‘ ‘ile.

_/» RADIO TELEVISION NEWS DIRECTORS

oes. ASSOCIATION, BT AL. ;

ON WRIT OF CERTIORARI ‘6 THE

UNITED STATES COURT OF APPEALS

"FOR THE SEV} CIRCUIT

. 2

BRIEF FoR THE

AN FEDERATION OF LABOR AND

CONGRESS OF INDUSTRIAL ORGANIZATIONS —

AS AMIOUB OURIAE .

This brief amicus, in support of the Petitioners’ position,

is filed by the American Federation of Labor and Congress

of Industrial Organizations (AFL-CIO), - a federation of

122 national and international labor unions having a total

membership:of approximately 12,500,000 working men and

women, with the consent of the parties, as: provided for in

Rule 42 of the Rules of this Court.

The opinion below, jurisdictional alnbiiaiiadh, questions

‘ presente, mj the statutory provision involved are set out

at Pp. 1-4 «f \*itioners’ brief. .

ae se

_INTEREST OF THE AFL-CIO = _—» .

The labor movemeuf is, and has always been, confident of

the justice and appeal of its programs’ policies. Secure in |

that confidence it seeks, and has traditi y sought noth-

ing more, than the opportunity to present ita views to the

_American public in general and to working men and women

in: partic . This opportunity has frequently been denied.

- “Prior restrdints though licensing laws have been employed:

- to seal off-entire states from 1 union organizers, see, Thomas

. v. Collins, 323 U.8. 516 (1945). The streets, parks, and. meet-

ing halls of large industrial cities have been closed to union

solicitations and handbills, see, Hague v. CIO, 307 U.S. 496

(1939) ; cf., Schneider v. State (Snyder v. Milwaukee), 308

U.S. 147, 155 (1939). Company towns have been declared

to’ }

- off limits hions, see National Labor Relations Board v.

_ Stowe Spi | Co., 336 U.S. 226 (1949). Door-to-door soli-

citation has been barred,‘see Staub v. Bacley, 355 U.S. 313

(1958). Privately owned streets open to the’ public at large :

Kave bee® closed to those who wish to spread the union’s:

views, Amalgamated Food Employees v. Logan Valley

Plaga, 391 U.S. 308 (1968). And organizers who. seek ee

spur organization have been refused access to the plant —

they seek to organize, National Labor Relations Board v.

Babcock & Wilcox Co., 451 U.S. 105 (1956). As the fore-

' going citatior indicate, resistance to the spread of labor’s

message is. y a matter of history. In combating this —

resistance: the fact that this Court has established the pro- —_: :

position that the right of access to the streets of those who ae

seek to eopamunicate is a basic civil right protected by the

First Amendment, Hague v. CIO, supra, 307 U. S. at 515 has :

been a most formidable aid.

It is. our view, as we demonstrate nicola, that the public’s

right of access to the airwaves to present all points of view

on issues of public importance should also be regarded as

a basic right of free men protected by the First Amend-

ment. Given radio’s and television’s.vast potential for the

‘tadvancement of informed public opinion,’’ Report on

; ee

@

3

Editorializing by Broadcast| Licensees, 13 FCC. 1246, 1249

(1949) and our ‘‘profound national commitment to the

principle that debate. on public i issues should be uninhibited,

robust and wide open,’ New York Times wv. Sullwan, 376

U.S. 254, 270 (1964), the First Amendment requires that

the public airwaves be open to the members of the general agrees

public.

' If such a rule of law is not established, the loss to the

labor movement, as well as to all other members of the

general public who do not hold broadcast licenses, will be

_ a substantial one. We merely note two examples here, both

of .which have been brought to the attention of the Com-

mission to indicate the nature of that loss. In the proceed- .

ings which led to the instant case, the International —

graphical Union, AFL-CIO, noted :

“Since December 1964 there has been a trike by

vena graphical Union No. 832, one of the

e " Taterentional- Typographical Union,

joan che publisher of the Lafayette Advertiser, a

daily newspaper which is the only newspaper in the

_ Lafayette area. There has been a refusal of this com-

pany to recognize‘ the union, a refusal which is pres-

. ently the subject of a complaint against the company

issued by the General Counsel of th the National Labor

Relations Board. The issue is obviously one of great _

wipe importance and interest in the community and

or obvious reasons the struck newspape is not avail-

able to the union as a medina for the expression of its -

views. Accordingly, the union has made strenuous

efforts to obtain air ae on the local broadcasting ste- .

tions. It offered to submit the script for its proposed

program for review by the station. In every instance

the union was denied thé opportunity to purchase the

‘ time. The derelection of the broadcasters in Lafayette

is noteworthy i in this nle-seling proceeding because

it is symptomatic of a prevalent practice, contrary to

the public interest as defined by Congress.”’

This i is not an isolated example. All broadcastets are em:

-ployers and it is too often true that their self-interest in

_ keeping unions weak affects their news judgements, see

' \Hearings, Administration of the Labor-Management Rela-

\ .

.,

See | .

| tions Ast by, the National Labor Relations Board, before ;

eg the Subcommittee on the National Labor Belations Board,

_ 87th Cong., 1st Sess. (1961) Part I, 292-331. > ..

‘This past year the Arkansas State ‘AFL-Cto submitted -

‘amendments to the state’s Workmen’s Compensation Law

Calte he by speuring a petition signed by the requisite number of

registered voters to put the matter on the ballot.: This

proposal was enacted into law by a 7500 vote margin out

_ Of 500,000 votes cast. The opposition campaign to this

measure was vigorously parsued and according to public

opinion polls changed strong public support for the mea-

sure into a closé race during the week or two immediately

‘preceding the election. This opposition campaign was car-

ried out primarily through advertisements in newspapers

and on radio and television. The Arkansas State AFL-CIO,

the only major supporter of the measure, wag not able to

‘approximate the amount of money spent on advertising by |

its opponents. Television stations serving Arkansas view- __ AM

_ ers were, therefore, asked to give time to the State Federa- .

_- tion so that the voters would hear both:sides of the issue.

Generally, because of the provisions of the Communications —

Act the stations cooperated. Nevertheless, even at this late

ciate in the history of the Act, and despite the fact that

their duty was clear,/two stations refused. The matter of

their refusal is now pending before the Commission.

The foregoing makes. the. AFL-CIO’s interest in. this. -

proceeding manifest and it is because of this interest that _

we have sought to acquaint the Court with our views.

The Public Has A Constitationally 1 Protected Right of

axcasisiisfig tol of anal iebatatin

Issues Of Public Importance.

In National Broadcasting Co. v. United santa 319 US.

190, 212-213 (1943) thie Court noted:

“Without licensing the result [would be] confusion

and chaos. With everybody on the air, nobody could

a

‘ be heard . : [This] im attributable to: certain basic

facts about. radio as a means of communication—its

facilities are limited; they are not available to all who

may wish to use them; the radio spectrum simply i is not

- large enough to accommodate everybody. There js.a

fixel natural limitation upon the number of stations —

that can operate without interfering with one another.

Regulation of radio was therefore as vital to‘its devel- ..

opment as traffic control was to the development of +

the automobile:”’ , Oh

To deal with the consequences of these facts of physics, }

§301 of the Communications Act of -1934 as amended, 47.

— US.C,, §301 provides: "

_ “Tt is the purpose of this chapter, among other

things, to maintain the control of the United” States

‘over all the channels of interstate and foreign radio

transmission; and to provide for the'use.of such chan-

— Bee not the ownership thereof, by persons for

| riods of time, under licenses granted by Fed--

| prey authority, and no such license ‘shall be construed

: to create any right, beyond the terms, conditions, and

periods of. the license. No-person shall use or operate

‘any apparatus for the transmission of energy or com-

munications or signals by radio [in or affecting inter-

state commerce] except under and in accordance with

this chapter and with a license in that behalf granted ©

' under the provisions of this chapter,”’ eet

Section 153(h) provides :

A person ¢hgaged in radio eipdeitag . . Shall -

not be deemed a common carrier.’’

: And $501 of the Act, 47 U.S.C. §501 provides:

‘‘Any person who willfully and knowingly. does or

. causes or suffers to be’done any act, matter, or a

‘ in this chapter prohibited or declared to be unlawfu

: or who willfully and knowin instep omits or fails to do any

act, matter, or thing in this, ter required to be done,

or willfully and knowingly aie or suffers such omis- .

sion or failure, shall, upon conviction thereof, be pun-

ished for such offense, for which no penalty (other than

a saci is ee? in this. chapter, by a fine of

—

‘pot. more than $10,000 or se imprisonment for a terme

“not exceeding one year, or |

Thus, the penal laws of the United States assure that ale ee

those persons who have received a federal license enjoy the ©

G right | to practice electronic journalism i in the United States.

If there were nothing more in the governing law, those who

“unSuccessfully. seek a federal license, or those who unsuc-

cessfully seek air time from a licensee would be barred, by

‘governmental action, from reaching the genéral public

through the airwayes—barred, in other words, from setting

up their own electronic ‘‘press’’ to propagate their views.

The situation which would obtain is equivalent, to that which

would result if the Governinent were to decree that only a

limited number of licensed presses might be operated in this

country, and that the public thoroughfares and the mails

might be used only to circulate the product of these presses.

‘If Congress’ had stopped at this point, thereby creating an

unrestricted monopoly position over a valuable public com-

= - munications’ resource for those in the broadcasting indus-

try, there would, we submit, be no doubt that the Act would

” be inconsistent with the First Amendment, kee pp. 14-15 .

infra. But §§301 and 501 do not comprise the entirety of the.

governing law. For the Act imposes on licensees an ‘‘obli- °

- gation . . . to operate in the public interest and to afford

reasonable opportunity for the discussion of conflicting

~ views on issues of public importance,’’ §315(a) (4) ; see also,

- “Report on Editorializing by Broadcast Licenses, 18 FCC

' 1246 (1949) ; Public Notice of July 1, 1964, Applicability of

the Fairness Doctrine im the Handling of Controversial

Isswes of Public Importance ( sd ead Primer) 29 Fed.

Reg. 10415 (1964).

‘The: Radio . Television News Directors ‘Abeosiation :

(RTNDA) and the National Broadcasting Company (NBC)

_ argue that the limited right of access to the airwaves:

granted by $315 places burdens on them which generate

self-censorship.. On this basis they argue that the (315

’ requirement that licensees must afford a reasonable oppor-

’ tunity for the discussion of éonflicting views is incompatible

. with their right of free’ speech weeny ici the First

7

Amendment.!* It is our view. that the Government has the’

‘power, indeed the duty, to promote variegated. speech on

the airwaves by assuring non-licensees an opportunity to

exercise their right of free speech, and that the | ial

and practical costs of such a policy do not serve to render

it unconstitutional. With the exception of National Broad-

casting Co., supra, 319 U.S. at 226-227, this Court. has not

had occasion to apply the basic principles of the First

Amendment to broadeasting. Nevertheless, we suggest that —

the prior decisions. of this Court do point a the proper

resolution of the instant case. 4%. |

~ The Government stands astride three Seueneetal avenues:

‘for the circulation of views—public thoroughfares, the

mails, and the airwaves. As we view the \matter, the basic .

issue here is the right of access of the gengral public to the

third of these valuable resources for communication. While

the law on the exact nature of this right is relatively unde-

veloped, there is a substantial body of law on the right of

access to public thoroughfares of those who seek to exercise -

their First Amendment rights. As we shall now demon-

strate, that body of law presents the appropriate starting

point-from which to reason toward a.solution to the prob-

lem present here. »

1. In Davis v. Massachusetts, 167 US. 43, 47 .(1897 )

affirming 162 Mass. 510 (1895), this: Court endorsed the ~

following language of Mr. Justice Holmes, then a member

of the Supreme Judicial Court of that State: :

“Ror the legislature absolutely or. conditionally to

forbid public speaking in a highway or apo park is

no more an infringement of the rights of a member of

"7 the public than-for the owner of a private,house to

forbid it in his house. When no proprietary right inter- -

feres the legislature may end the right of the public to

enter upon the public place by putting an end to the

1The Columbia Broadcasting: System, Inc. has: taken the nar-

rower position that, assuming arguendo that this requirement ‘of

§315 i is constitutional the Commission’s Rules on Personal Attacks

in issue here are not justified by the Act and conflict with the First

Amendment. ;

, - ‘ . *

-; * , . 8 - . i

dedication to: public uses. ‘So it may saab the lesser step

of limiting the public use to certain purposes.’’

It has since been recognized that the inhibitions Davis

placed on the effective enjoyment of First Amendment

rights are intolerable and that case is no longer good law.

For the ‘‘liberty of circulating is as essential to . . . free-

.dom [of speech] as liberty of publishing, indeed, without

the circulation the publication would be of little value,’’ :

Lovell v. Griffin, 303 U.S. 444, 452 (1938). Eree circulation‘

is of the essencé-since the First Amendment ‘‘ presupposes

that right conclusions are more likely to be gathered out of

a multitude of tongues, than through any kind of authorita-

tive selection. To many this is, and always will be, folly;

but we have staked upon it our all.’? United States v. Asso-

ciated Press, 52 F. Supp. 362,,372 (US DCSD NY 1943)

(L. Hand, J.). ‘‘That Amendzient rests on the assumption

that the widest possible dissemination of information from -

diverse and antagonistic sources is essential to the welfare

of the: public, that a free press is a condition of a free

society . .. Freedom_to publish means freedom for all and

not for some. .?? Assoviated Press v. United States, 326 U. Ss

1, 20 (1945). ee >

. It is plain that allowing the States to close the streets at

their discretion to ‘the circulation of free speech would

éffectively curtail ‘‘the ‘widest possible dissemination. of:

information from diverse and antagonistic sources.’’ For

‘it would inhibit the right of expression of those whose

‘means are too limited to utilize methods of communication

_ other than the handbill and the picket sign. It would, there-

‘fore, damage the entire society by limiting the opportunities .

- of both the potential publishers and their auditors, see,

~~ Martin v. Struthers, 319 U.S. 141, 148 (1943); Lamont v.

. Postmaster General, 381 U.S. 301, 306-307 (1965). Thus, as

Mr. Justice Roberts stated in mage v. CIO, 307 U. S. 496,

515 (1939) : Ss

‘‘Wherever the title of streets and parks may rest,

they have immemorially been held in trust for the use

of the public =, time out. of mind, have been used for

|

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9

purposes of assembly, communicating thoughts be-

tween citizens, and discussing public questions. Such

use of the streets and public ‘places has, from ancient

time, been a part of the’ privileges, immunities, rights,

and liberties of citizens.’’ See also Schneider v. State

(Town of Irvington), 308 U.S. 147 (1939) ; Jamison v.

Texas, 318 U.S. 412, .415-416° (1943) ; Amalg amated

11908 eas v. Logan Valley, Placa, 391 U.S. 308.

1 .

As Professor Kalven a shee. ‘Cie Dies Louis. -

iana: The Concept of the Public Forum, 1965 Supreme

Court Review 1, 12, 13: :

“There i is the aura of a large-democratic principle

{at work in Hague]. When a citizen goes to the street,

he is exercising an immemorial right of a free man, a -

- kind of First-Amendment easement .. . In an open.

democratic society the streets, the parks, and other

public places are an important facility for public dis-

“~*" cussion and political process. They are in brief a pub-

lic forum that the citizen can commandeer; the gener-.

osity and empathy with which such facilities are made

available i ‘is an index of freedom.”’

This right of access to’ public thoroughfares i in order to

communicate is, of course, not limited to the publishers of

newspapers and magazines of general circulation. It was

fought for and won by minority groups, such as the Jeho-

vah’s Witnesses-and organized labor, whose needs and

finances have simply required them to get their message to

the general public on occasion. In-our pluralistic society,

dedicated as it is to dissemination of information from di-

verse and antagonistic sources, this occasional use of First

Amendment freedoms enjoys a claim to protection equal to

that of the public press: :

- “The liberty of the wens is not culled to news-

papers and periodicals. It necessarily embraces pam-

phlets and leaflets. These indeed have been historic

weapons in the defense of liberty, as the pamphlets of

Thomas: Paine and others in our own history abun-

ar attest. The ‘press 1 in its historic connotation’

t)

\

10

~ comp rehends é every sort of pains which affords a

es of information and ——- ”? Lovell v. Griffin,

supra, 303:U.S. at 452.

While the First Amendment wate ‘of handbilling and.

~~ — leafletting on public thoroughfares invalidates much in the

__. way of governmental regulation, it does not prevent regu- .

lation aimed at orderly expression: ‘‘A person could not

exercise this liberty by taking his stand in the middle of a

crowded street contrary to traffic regulations and maintain

his position to the stoppage of all traffic.’”’? Schneider v.

State, supra, 308 U. S. at 160. Thus, in Cox v. New Hamp-

shire, 312 U.S. 569 (1941), affirming 91 N.-H. 137 (1940), -

_ this Court upheld the Supreme ‘Court of New Hampshire i in

sustaining a conviction for parading without a permit since

the licensor was limited exclusively to considerations of _

time, place and manner and in effect to the Newtonian prin- ~

ciple that you cannot have two parades on the.same corner -.

at the same time: ‘‘A license to permit [a parade on a pub- >

lic way] may not be required as a form.of censorship; but'a |

_license to permit its enjoyment in fair adjustment with the’

enjoyment of other relations and conditions is not under-)

stood to be under the ban of the federal constitution,’’ 91

N. H. at 148; cf., ‘National Broadcasting Co., supra, 319 U.S:

at 226-227.:

As Professor Kalven points out, 1965 Supreme Court

Review: at 23-24, Schneider and Cox v. New Hampshire

bring into focus a classic distinction in speech theory :,

“It is the distinction. between regulations like. Rob-

ert’s Rules of Order and regulation of content. No one

has ever argued that speech should be free of the

restraints of reasonable parliamentary rules, and any

concessions on this front should not be taken as rele-

vant to the questions most central to. speech theory—

questions of control of content. The point then is that,

in any theory, speech has always been dependent on

. some commitment to order and etiquette ... Listen for

‘a moment to Alexander Meiklejohn describing a town .

meeting, [Meiklejohn, Political Freedom 24-28 (1960)] :

In the town meeting the people of a community

assemble to discuss and to act igs matters of public

il

7

Sistah: cial: obit: oorhouses, health, external

defense, and the ‘like. very man is free to come.

They meet as political equals. Each has a. right and

a duty.to his own i thoughts, to express them,

_ and to listen to the arguments. of others. The basic

principle is that the freedom of speech’ shall be un-

abridge. ‘And yet the meeting cannot even coher 7

unless, by,common consent, speech is-abridged. A ~—

- chairman or moderator is, or has been, chosen .

The moderator assumes, or arranges, that in the con-

duct of the business, certain rules of. order will be —

observed ... The town meeting, as it seeks for free-

. dom of public discussion of ‘public problems, would

be. wholly | —— unless — were =

abridged . .

“These sialic activities of the town

meeting indicate that the First Amendment to the

Constitution does not forbid? When self-governing

- men demand freedom of speech they are not saying

that every individual has an inalienable right to

_ speak whenever, wherever, however he chooses. They

‘. - G@o’not declare that any man may talk as he pleases,

when he pleases, about-what he pleases, about whom

~ he pleases, to whom he pleases. The common sense

of any reasonable society would deny the existence

. of that unqualified nett. fis

The lessons of H. ague, Schneider and their progeny can

._ profitably be summarized as follows: The First Amendment

_ embodies a-‘‘profound national commitment to’ the prin-

ciple that debate on public issues should be uninhibited,

robust and wide open,’”? New York Times v. Sullivan, 376.

US. 254, 270 (1964). (Emphasis added). We emphasize the

, word ‘‘debate’’ because the First Améndment protects ef-

fective access to the general public for. the full range of

potential publishers rather than for just a chosen few. We

"have ‘‘staked:. . . our all’’ on the proposition that ‘‘right

conclusions’ axe more likely to be gathered out of a multi-:

tude of tongues than through any kind.of authoritative se-

lection,’’ United States v. Associated Press, supra, 52 F.

Supp. at 372. For this reason, the First Amendment re-

_ quires govermental action to facilitate speech by cream

é

7 3 12

: ° ? x °

obstacles to the circulation of ideas through public chan- ~

nels of communication even though such action may create

~~~ ‘gabstantial burdens. Use of the streets to communicate may ~~

eomplicate traffic control, may. i increase the expense of pro-

| '. viding ‘police protection and maintaining sanitation, and ~:

may disadvantage abutting business men who wish to. be

free of the message of. unions, consumer groups and the

civil rights movement. Within wide limits, see Cameron v.

' Johnson, 390 U.S. 611 (1968), these costs are acceptable for

‘‘this ‘Court has characteized the freedom of speech and

' that of the press as fundamental personal rights and liber-

ties. The phrase is‘not an empty.one and was not lightly

used,’’ Schneider, supra, U.S. at 161. Indeed, the force

of the First. Amendment t.of access to public facilities

appropriate for communication is such that where interfer-

ence with the right to circulate views is shown, it is for the

Government to justify the abridgement, not for the speaker

to justify his right to-inform, for the prinicples underlying

the First Amendment are his justification. For this reason,

~ so far as we are aware, there has never been'a First Amend-

ment case in this Court in which a speaker seeking the right

‘to use a particular medium has been required, as a precon-

- dition to the exercise of this basic right, to establish that

alternative channels of communication are insufficient for

his purposes: ~~

“Tt is suggested that the Los Angeles and Wor-

cester ordinances are valid because their operation is

limited to streets and alleys and leaves persons free

to distribute printed matter in other public places. But,

-as we have said the streets are natural and proper

places for the dissemination of information and opin-

1on; and one is not to have the exercise of his liberty

of expression in appropriate places abridged on the

plea that it may be exercised in some other place.’’

Schneider v. State, supra, 308 U.S. at 163; see also

“Logan Valley Plaza; supra, 391 U. Ss. at 393.324,

we. os

' sevebthdlees, as Schneider and Cox v. New H. ampehire

. demonstrate, restrictions on the circulation of views which

flow from regulations designed to promote orderly access

a

ene

ae

—- »

re

13

to a public facility, and not to ban or restrict access unduly,

are proper. Such regulation is not anathema; instead, it is ©

_inherent in the very congept of free public debate. In enact-

ing and applying these rules of order, however, the Govern-

ment must follow a course of neutrality. A ruling that only

‘the American Legion, the Consumers Union, the NAACP,

or the Teamsters could use the streets of a city to make

their views known could not pass muster: ,

‘‘The only questions asked of the witnesses at the

_ hearing [which resulted in a denial of permission to

use a public park for a meeting] pertained to their

alleged refusal to salute the flag, their views on the

Bible, and other issues irrelevant to unencumbered use

‘of the public parks. The conclusion is — that

the use of the park was denied because of the City

Council’s dislike for or —— with the Wis- ‘

nesses or their views. The right to equal protection of

the laws, in the exercise of those freedoms of speech

and religion, proteeted bythe First and Fourteenth

Papen ef he firmer foundation than the whims

_or personal opinions of a local governing body.

‘¢. .. In this Court, it is argued that state and city

officials should have the power to exclude religious -—

groups, as such, from the use of the public parks. But

that is not this case. For whatever force this contention

could possibly have is lost in the light of the testimony _

of the Mayor at the trial that, within his memory per-

mits had always been issued for religious organizations

and Sunday-school picni¢s.’’? Niemotko v. Maryland, —

340 U.S. 268, 272-273 (1951). Oe oe aa

2. The basic approach governing access to the streets in

order to communicate is applicable here and justifies gov-

ernment action to assure ‘‘reasonable opportunity for. the -

discussion of conflicting views on issues of public impor-

- tance’’ on the airwaves.

First; there can be no doubt that the airwaves are ah -

appropriate public facility for the exercise of the right of

free speech: ‘‘Basically, it is in recognition of the great -

contribution which radio can make in . . . the development of

an informed public opinion through the public dissemina- _ |

tion of news and ideas concerning the vital public issues of.

‘

haar aay, ¥

the day ... that portions of the radio spectrum are allocated

to that form of radio communications known as radio broad- _

casting.”? Report on Editorialicing, 13 FCC at 1249. Thus, -

~ the underlying rationale for the development of this re-

ee

‘ from closing the mails.to those who wish to use that medium.

source is to facilitate the’ exchange of ideas and information.

It is true, of course, that this development is undertaken by

private licensees rather than by the Government itself, but

§301 of the Act expressly declares that the airwaves remain

under the ultimate ownership and control of the United

States, Federal Communications Commission v. Pottsville

Broadcasting Co., 309 U.S. 134, 138 (1940). ‘‘A broadcast ‘

. license is a public trust subject to termination for breach

_ of duty,’’ Office of Communications v. Federal Communica-

- tions Commission, 359 F'.2d'964, 1003 (CA DC Cir., 1967).

Moreover, as wenoted at the outset, the Government's role

in the development. of radio and television includes an an-

dertaking, backed by the criminal law, to prevent non-

licensees from broadcasting. Since government action thus

_ permeates this field, there can be no doubt that the First

Amendment ¢laims of those who seek access to this medium

cannot be disregarded. Radio ‘television stations are

not the private preserve of the licensees, Just as one who is

the ‘‘o ”* of a public thoroughfare cannot close if to

‘those who seek to exercise their right of free speech,

Marsh v. Alabama, 326 U.S. 501 (1946) ; Logan Valley Plaea,

supra, 391 U.S. at 315-325, licensees, who do not have a:

_ property right to stand on, cannot claim a privilegé broader

than that of the Government, to bar reasonable access to

-, that facility by members of the public.

* Second, the’ Constitution certainly permits, and indeed

requires, governmental, action designed to facilitate access

to the airwaves by members of the public. Despite the

weighty claims of travelers, the First Amendment protects

the right of access to the streets of those who seek to exer-

cise their First Amendment rights, and as we have pointed

. out, this right of accéss is not limited to the publit press,

seé pp. 9-10, supra. Moreover,| the Government is- barred

a

15

to transmit their ideas, see, Hannegan v. Sonido, 327 U.S.

116 (1958), Lamont, supra, 381-U.S. 301.. Thps, the use of

- these facilities for communication is considered a basic

right of free men, Hague v. €10, supra, ot U.S. at 515.

Given radio’s and television’s vast potential! for ‘the ‘‘ad-

vancement of informed public opinion’’ and our devotion

to the proposition that ‘fright conclusions are more likely

to be gathered out of a multitude of tongues than through

any kind of authoritative Greg ng’ Associated Press,

stitution, be e the exclusive domain tr) poe in the busi-

ness of broadcasting. | ote /

Third, the foregoing does not mean

cannot enact. rules of order to govern |the use of the air-

waves. Such rules are consistent with the First Amend-

-ment.. They are, indeed, a necessary dition for imple- rey

menting the principles of free speech, Just as experience

has taught that two parades on one corner may be'expected

to produce disorder without communication, and that a town

meeting without a moderator does not/advance the free flow

of ideas; it has also taught that unrestricted use of the air-

waves produces chaos, National Broadcasting Co., supra,

319 U.S. at 212-213. Thus restrictions on access are war- -

ranted, even though ‘‘freedom of utterance is thereby °

abridged to many who wish to’ use the limited facilities of —

radio’’ Id at 226-227. But where the subject is an ‘‘issue |

of public importance’’ the very concept:of rules of order

requires neutral rules that do not favor one side or the other. ,

- The precepts Of the First Amendment imply that as to

_ debatable topics there siall be debate. Naturally, in pur-

suing this goal, the Government cannot constitutionally re-

quire that ‘‘each speaker must be fair to both sides,’’ Kal-

ven, Broadcasting and the First Aynendment, 10 Journal of

Law & Economies 15, 47 (1967) (emphasis in original) ; but .

as moderator it has an affirmative obligation to assure that

both sides are: heard. That, as we understand it, is what

oo a

Congress sought in §315; and for the reasons set out thus

far, we submit that this provision therefore promotes the

basic aims of the First Amendment. . Via

3. The counterarguments of the Respondents as’ de-

veloped in-the court below/suffer from a basic error of

omission. Throughout their briefs to the Seventh Circuit,

” there is not a single mention of the First Amendment rights

of non-licensees who are/denied access to radio and-tele-

.'° vision by the combined force of the Government and its

licensees. The instant

‘ test between the Gove

and the licensees, ac to preserve a free press. As we

have attempted to demonstrate, this view of the matter dis-

torts reality. The question truly'at issue here is whether

is argued as if it were a con-

- the Government can act to effectuate the right of the general.

' public to speak, as well as to hear, without offending the

First Amendment. As we have stressed, the answer to this

question is that the Government has a constitutional obli-

gation to effectuate this right by enacting rules designed to

assure that/licensees will air ‘‘conflicting views on iseues of

public importance.’’ Members of the general public are not

limited to the #ixht to hear the uncensored views of broad-

casters, a right protected by both the Constitution and $326

ment, acting to suppress criticism,

of the Act. They also have a right to speak on the public

airwaves, and this right too is' protected by the Constitution

and under the Act by §315. ~

In cases such as Speiser y. Randall, 357 U.S. 513 (1958) ‘

Smith v. California, 361 U.S. 147 (1959); New York Times, .

_ supra, 376 U.S. 254 and Lamont, supra, 381 U.S. 301, upon

which Respondents rely, this Court has been quick to pro-

tect First Amendment values -by striking down laws which

placed burdens or inhibitions on free speech. Tle ration- ~

ale of this line of authority is not applicable here. For in

eath of these precedents the Court was required ‘to make a

judgment for or against speech. The question Speiser,

Smith and New York Times presented was whether free

‘speech was to be sacrificed to serve some other social in-

terest. ‘The decision arrived at demonstrates the ns

*

v

force of Mr. Justice-Roberts’ statement in Schneider, supra,’

308 U.S. at 161: ‘‘this Court has characterized the freedom —

of speech and that of the press as fundamental personal ©

rights and liberties. The phrase is not an empty one and

“~. was not lightly used.’’ It is for this reason that this Court ‘

has refused to countenance even relatively minor inhibi-.

tions on the right'to speak. | |

' But the basic insight of Schneider cannot be made the key ~

‘to’ the problem presented here for whether the instant de-

- cision goes for the Petitioners or the Respondents a free

speech interest will be served. If the decision is for govern-

ment regulation which secures aceess to the airwaves for

the public the iiterest served will be that of the multitude

of citizens who are not licensees; if it goes for the Respon-

dents the interests served will be that of the few who are

licensees. By the same token, no matter which way this

Court turns, the right of free speech of one group or the

_ other will be burdened, If the Court should hold that there

is not a right of access to radio and television for members

_ of the public the burden imposed will be complete suppres-

. sion of their right to reach ‘the radio and television audi-

ence. And’ this suppression cannot be justified on the

ground that there are other media available: ‘‘one is not

to have the exercise of his ‘liberty of expression in appro-

priate places abridged on the plea that it may be exercised

in some other place,’’ Schneider, supra, 308-U.S: at 163.

On the other hand, if the Court should hold that the pub-

lic does have a right of access to radio and television the

‘free speech right of broadcasters will be burdened in that .

their speech on public issues will be ‘‘conditioned ... upon |

[their] sending tapes or transcripts to persons affected,

making available free broadcast time for reply, facilitating _ .

the presentation 6f opposing views which may be abhorrent

to [them], disrupting [their] program schedule, or any

combination of these.’’ (RTNDA Brief to the Seventh Cir-

cuit 26). These burdens are dé minimus. Certainly they are

as nothing when compared to the burdens Respondents

seek to have imposed on non-licensees, the burdens ifmposed

V

1B tux

by the facts of physics ,or the burdens sustained by this ~

Court in National Broadcasting Co. Indeed, a holding that

a broadcaster. must open a public channel - of communica-

tion to its owners. free of charge does not impose a con-

stitutionally cognizable burden upon him:. ‘‘Freedom of

- speech .. + [is] available to all, not merely to those who can |

\ pay their own way,” Murdock v. Pennsylvania, 319 U.S: 105,

\. 111 (1943). . Nor is it ‘accurate to say that the facilitation of

\, the presentation of opposing views. which are abhorrent to

him i injures a broadcaster in any constitutional sense : ‘‘The

fréedom.of speech protected against-governmental abridge-

' ment by the first amendment does not extend any privilege

to governmen licensees of means of public communications

*:. & exclude the expression of opinions and ideas with which

_: “they are in*disagreement.’? Report on ‘ Editorializing, 13

FCC at ‘1256, see also, Niemtko, supra, 340 U.S. at 227-228.

Moreover, any disruption of program schedules which may

result; while perhaps*a financial and practical burden, does

not approximate the spender would be imposed on

the free speech rights of others by: holding for Respondents.

For ‘we think it plain that there are limits to the self-censor-

ship which broadcasters may practicé avoid this burden.

_. The Government cannot require licensees te. take ‘any par- ©

' /tieular positien on controversial “‘issues of public i impor-

tance,’’. but it can require that such issues be raised and

éxplored on the airwaves. Government action to facilitate

and encourage discussion is not contrary to the precept of

the First Amendment; such action does not.impose an un-

esata sit condition on the right of licensees :

The Commission does therefore coerce their [the

_ licensees] choice and their freedom; and perhaps, if the

public interest in whose name this was done were other

_ than the interest in free speech itself, we should have .

a problem under the First Amendment; we might have .

: to say whether the interest protected, however vital,

° could stand against the constitutional right, But that is

oe not ware case. The interests which the regulations seek:

- to -protect. are the very interests which the First

S ‘Smendment itself protects... .”? National en

& |

19

Co. v. United States, 47 F. Supp. 940, 946 (Us DC aD :

NY, 1942) (L.-Hand,.J.).

It is precisely because there is a free speech interest on

both sides that the approach of Cox v. New Hampshire

should govern the disposition of this controversy. For Coz

illustrates the proper approach to regulation in the interest

of orderly and variegated speech. Such regulation which

_ furthers the interest in ‘‘the widest possible dissemination

of information from diverse and antagonistic sources,”’

Asséciated ‘Press, supra, 326 U.S. at 20, is lawful even

though the burdens imposed en those who would monopolize.

public discourse are considerable.. For the overriding free

speech interest is not that of the putative monopolist; it is

the interest of those who, absent the regulation, would be

denied any opportunity to speak. Just as the two Associated

Press cases .(Assoctated Press, supra, 326 U.S. 1; Associ-

ated Press v. National. Labor Relations Board, 301 U. S. 103,

132 (1939) ) rest on the recognition that there is a certain

price the press must pay as a participant in our social sys- ’

tem, Cox v. New Hampshire’ rests on the ‘recognition that.

there is a price that speakers must pay as participants in a

dialogue: The First Amendment protects advocacy chan-

neled through the judicial process, NAACP v. Button, 371

U.S. 415 (1963) ; and there can be no doubt that this right

would be utilized more freely if judgment went for the’

Plaintiff as soon as he stated his claim without affording ©

_ the Defendant an opportunity to answer. But such a pro-

ceeding would make a mockery of the legal system and no

one suggests that the cost incident to a balanced presenta-

tion of views tends to inhibit potential plaintiffs and im- -

poses a price too high to pay. But the same token, the = oh

mere fact that access to the airwaves may prove a burdén

.to broadcasters is insufficient to demonstrate a need for :

one-sided debate on public i issues on the airwaves.

. 4, There can be no escape from the proposition that the

Government has the power and the duty to set up rules of

_ order designed to assure that members of the public will

have a ‘‘reasonable opportunity for the discussion of con-

POO eee POT ee

eT toe aaa san

su ISSRRSSN nn sn

20

ficting views on issues of public importance’? on the air-

waves. In pursuing this goal the core value.at stake is ac-

. cess of the public to the airwaves in order to enrich and

_ diversify the discussion of issues‘of public,importance. As

the Respondent, CBS, pointed out below there is a question

as to whether the Personal Attack Rules-in their present

form are adequately confined to furthering that goal. Not

every personal attack raises a point of personal privilege.

_ And to the extent that New York Times is-relevant here at

_all it does point toward the conclusion’ that protection of

one’s interest in an unblemished reputation i is not the. prime

limited air time open to the public it might be best to focus

on personal attacks that go to the substance of debatable

issues rather than personal attacks per. se.

Moreover, as the Government points out, ates en-

forcement of any obligation imposed on licensees in this

area may well depend on the availability of sanctions less

harsh, and thus more credible, than loss of license, and the

Commission may impose such sanctions only where there is

willful disregard of its rules.:This indicates that an effective .

right of access for the public cannot be-assured unless spe-

cific rules, along the lines of the personal attack rules, are _

set down to cover the field. If, as the Government con-

tends, the rules in question here were necessitated by wide-

- spread disregard of this aspect of the overall obligation to

afford access to the public on issues of public importance,

there is no reason to believe that other and more critical

aspects of the obligation were, or will be, followed as long

as the present regime is followed. ss

Finally, as we have pointed out, the entire question of

what. the Constitution requires of broadcasters is in its in-

fancy. There will be many difficult practical problems to be

resolved in developing a méaningful right of access to the

-» airwaves just as there were, and continue to be, many diffi-

cult practical problems in adjusting the competing rights

of those who would use the streets for communication. Thus

_ far a meaningful attempt. to grapple with these issues has

a csalpiibtenincsn

21

been thwarted by the fact that the Respondents here take

the position that.the Constitution bars any governmental ©

activity which burdens their right of free speech, even

though that activity is on behalf of the free speech inter-

ests of the public; while, at times, the Government. has ap-.

peared to take the equally unsound view that the normal

inhibitions of the First Amendment do not bind it in regu--

lating radio and television, see, eo supra, 10 Journal

of Law & Economics 15. |

_ The foregoing suggests, as the Government. ‘admite, that

the Commission has not yet perfected the rules necessary

to implement the public’s right of access to the airwaves,

and fhat the necessary improvements will come only after

this Court has set down the basic standard which’ will guide

the course of future developments. It also suggests, as the

Office of Communication of the United Church of Christ

notes, that thus far the Commission has erred on the side __

of leniency in designing the sanctions which support such

a right and make it meaningful; in other words that the

Commission far from overreacting to this problem has been

- overly cautious. Nevertheless, the Commission’s Rules can’

and should be affirmed. As the Red Lion case demonstrates

the Rules in question contain a basic core of validity that

cannot be impeached. Moreover, none.of the parties before

the Court are challenging the Commission’s failure to go -

far enough fast enough. It is, of course, true that these _

rules govern speech and that in this area ‘‘precision of

regulation must be the touchstone,’ NAACP v. Button,

supra,371 U. 8. at 438, and that even legitimate ends must

be ‘‘narrowly achieved,’ Shelton v. Tucker, 364 U. S. 479,’

488 (1960). But the question of whether these Rules meet

those tests can: wait for a concrete case. In the interim, |

_ the Respondents are simply required to write a letter to

the Commission when faced with a questionable situation

or to provide minimal amounts of airtime to.members of

the public. Sanctions for alleged violations of the Commis-

sions Rules are dependent on a showing of willfullness and

this requirement of scienter saves the regulations from ©

he - 22

- Respondent’s claim of vagueness, Screws v. United States,

325 U. S. 91, 102 (1945). Indeed, since the Respondent’s

fears as to the scope of these Rules may well prove ground-

_ less, there is a substantial question as to whether their

claims based on vagueness are ripe for: ‘adjudication, cf.,

Communist Party v. Subversive Activities Control Board,

367 U.-8. 1, 106-110, (1961). It is instructive to compare the

broadcasters situation to that of the petitioners in Abbott

Laboratories v. Gardner,.387 U.S. 136 (1967). In Abbott -

‘Laboratories, a 5-3 decision, the majority found that the

case was ripe since tke regulations were ‘‘clear cut,’’ com-

pliance with the grder was costly, and failure to comply

‘risked ‘‘serious. criminal and civil-penalties.’’ On the other

hand, the main counterpoint was the government’s post-

- litigation representation, that only an injunctive remedy

' would.be sought, Id. at 151-154. In this setting, the Court

felt that it would not be ‘‘entangling [itself] in abstract _

disagreements about administrative policies,’ by taking

jurisdiction Id. at 148. Here on the other hand the very

point being made by Respondents is that the Rules are not

clear cut, compliance with the Rules is not costly, failure to

comply does not create the risk of serious penalties, and the

Act, not an informal representation is Respondents guaran- .

tee. Moreover the Commission has from the first indicated

* 4 wililngness to modify the Rules to meet principled objec-

tions. In the setting of the instant case reaching the vague-

-”. ness point would, therefore, lead to the Court entangling it-

: self i in an abstract ————

February, 1969

i

CONCLUSION

For the foregoing reasons, the decision of the court

below should be reversed.

Respectfully submitted,

_ J. Auserr Woii 3

General Counsel, AFL-CIO

. Roperr C. Mayer .

* Laveence Goip

736 Bowen Building

815 Fifteenth Street, N.W.

- Washington, D. C. 20005

Tomas E.. Hargis

Associate General Counsel, AFL-CIO

815 Sixteenth Street, N.W.

’ Washington, D: C. 20006